Final Rule Designating Northern Long-Eared Bat an Endangered Species Goes into Effect – All PNDI Clearances Must Be Reissued

May 4, 2023
Diana A. Silva
MGKF Special Alert

On March 31, 2023, after a 60-day extension, the U.S. Fish and Wildlife Service (“USFWS”) final rule designating the Northern Long-Eared Bat (Myotis septentrionalis) an endangered species under the Endangered Species Act of 1973 (“ESA”) went into effect (the “Final Rule”). As previously reported, the reclassification of the Northern Long-Eared Bat from “threatened” to “endangered” status will require developers to take additional measures to ensure compliance with the ESA. This up-listing also resulted in the prior 4(d) rule for the Northern Long-Eared Bat to be rendered obsolete on March 31, 2023.

The USFWS has promulgated interim guidance to assist parties with projects now subject to these enhanced requirements. This guidance applies to projects where there is some “federal action,” which includes all activities or programs authorized, funded, carried out, or permitted – in whole or in part – by Federal agencies.  These activities include any project that must obtain federal permits (e.g., USACE 404 permits), receives federal funding, or any other projects conducted by private, state, tribal, and local parties that may result in impacts to the habitat of Northern Long-Eared Bats (e.g., timber harvest or tree clearing activities as part of land development, as well as infrastructure projects). The interim guidance supersedes all guidance previously issued regarding the Northern Long-Eared Bat’s “threatened” designation and is effective for a period of one (1) year. Final guidance is anticipated by April 2024.

The interim guidance includes an Interim Consultation Framework, which will guide USFWS as they complete necessary consultations for projects where Northern Long-Eared Bat habitat may be present.  The stated goal of the Interim Consultation Framework is “to help federal agencies insure that their actions are not likely to jeopardize NLEBs while streamlining formal consultation for federal actions consistent with the former 4(d) rule.”  The goal is for the Interim Consultation Framework is serve as a step between the previously applicable 4(d) rule and the final guidance that is still in the process of being developed.

Generally, the current interim guidance in large part follows much of the previously applicable 4(d) rule, and prohibits activities that would disrupt the hibernacula of the Northern Long-Eared Bat, prohibits tree clearing activities within 0.25 miles of known hibernaculum, and prohibits tree clearing activities of known occupied maternity roost trees from June 1-July 31 (i.e. the “pup” season), among other restrictions.   

It is anticipated that federal agencies, including notably the U.S. Army Corps of Engineers (“USACE”), will revisit previous permit approvals or applications in light of the up-listing of the Northern Long-Eared Bat, and may require a permittee to re-certify previous ESA clearances.  Of particular regional significance is a public notice issued by the USACE Baltimore District Office, advising that all Pennsylvania Natural Diversity Index (PNDI) receipts issued prior to March 31, 2023 are no longer valid. While PNDI receipts are typically valid for a period of two (2) years from the date of issuance, the Final Rule now requires habitat screening for the Northern Long-Eared Bat in all counties of the Commonwealth of Pennsylvania prior to undertaking any additional regulated work. Thus, permit applicants with PNDI receipts in hand that were issued within the last two (2) years must now resubmit their project through the PNDI tool to reconfirm the status of their project by re-obtaining a “No Effect” determination from USFWS.  Projects that previously received a “No Effect” PNDI response may now also be at risk for potentially receiving a new determination of “May Affect” for the given project, or depending on the habitat in question, may require additional consultation with the USFWS and thereafter compliance with various avoidance measures during the implementation of the project. 

For more information on Northern Long-Eared Bats and the Endangered Species Act, please contact Jonathan Spergel (484-430-2309), Diana Silva (484-430-2347), Michael Dillon (484-430-2335), or Natalia Teekah (484-430-2333).